Back
IN THE HIGH COURT OF MADHYA PRADESH
Sheel Nagu and Anand Pathak,JJ.
Mahip Kumar Rawat v. Shri Ashwini Kumar Rai & Others
Contempt Petition Civil No. 1444 of 2020( Gwalior): arising from the order dated 27.6.2011 passed in W. P. No. 2222/2010;
Decided on 24.6.2021
(1) Civil Service -- back wages -- calculation of back wages pursuant to order of reinstatement -- is invariably based on wages which workman would have drawn had termination never taken place -- concept of award of back wages -- is based on fundamental principle of compensating workman for period he remained unemployed owing to termination found to be unlawful at subsequent point of time -- back wages are never relatable to concept of last wages drawn because last wages are relatable to pre-termination period, not to post-termination period -- concept of last wages drawn would not only be prejudicial to concept of back wages after reinstatement but would also be contrary to principle of public policy as per Chap. II of Contract Act, especially u/s. 23. (1986) 3 SCC 156 and (2020) 6 SCC 438 followed. [Paras 6, 7, 9 & 11]
(2) Civil Service -- back wages -- in writ petition, petitioner was held entitled to salary he was getting before termination of service -- thus, 50% back wages worked out on basis of last wages drawn (immediately prior to termination) appears to be correct -- however, dismissing case at this stage would be travesty of justice since calculation of back wages pursuant to order of reinstatement is invariably based on wages which workman would have drawn had termination never taken place -- thus, back wages have to be worked out based on wages which would have been drawn by workman from termination till reinstatement with all corresponding increase in wages from time to time. [Paras 5 & 6]
(3) Contract Act, 1872 -- S. 23 -- back wages -- are never relatable to concept of last wages drawn -- last wages are relatable to pre-termination period, not to post-termination period -- concept of last wages drawn would not only be prejudicial to concept of back wages after reinstatement but would also be contrary to principle of public policy as per Chap. II of Act, especially u/s. 23 -- in master and servant or employer-employee relationship, employer cannot rest on "inequality of bargaining power" -- "unconscionable term of contract" cannot be enforced -- Court may even refuse to enforce such unconscionable term of contract from remainder of contract. (1986) 3 SCC 156 and (2020) 6 SCC 438 followed. [Paras 7, 9 & 11]
(4) Constitution of India -- Arts. 215 and 226 -- power to do justice - in writ petition, petitioner was held entitled to salary he was getting before termination of service -- back wages worked out on basis of last wages challenged in contempt petition -- easier course available to Court would be to go by literal construction of said order and leave it to petitioner to seek clarification by way of review -- however, petitioner is workman and low paid employee -- fighting for his legitimate right since nearly 21 years -- anomaly which had inadvertently crept into direction contained in said order, clarified in exercise of inherent powers u/Art. 226 -- it is in interest of justice that finality be given to litigation as well as sufferings of Class IV employee -- these cannot be perpetuated on interpretational pretext. 1993 Supp. (4) SCC 595, Welfare Association (1999) 9 SCC 58 and (2) (2008) 14 SCC 115 followed. [Paras 13, 14 & 20]
(5) Constitution of India -- Arts. 215 and 226 -- contempt jurisdiction -- Court cannot travel beyond four corners of order alleged to have been non-complied -- but directions explicit in judgment/order or plainly self-evident ought to be taken into account. (2014) 3 SCC 373 followed. [Para 19]
¼1½ flfoy lsok & fiNyh etnwjh & iqu% LFkkiu vkns'k ds vuqlj.k esa fiNyh etnwjh dh lax.kk & fujiokn :i ls ml etnwjh ij vk/kkfjr gksrh gS tks deZdkj dks ÁkIr gksrh ;fn lsok lekfIr dHkh gqbZ gh ugha gksrh & fiNyh etnwjh fn, tkus dh ladYiuk & i'pkr~orhZ le;&canq ij fof/kfo#) fu"df"kZr dh tkus okyh lsok lekfIr ds dkj.k deZdkj ds csjkstxkj jgus okyh vof/k ds fy, mls Áfrdj nsus ds ewy fl)kar ij vk/kkfjr gS & fiNyh etnwjh dHkh Hkh vafre ckj ÁkIr etnwjh dh ladYiuk ls lacaf/kr ugha gksrh D;ksafd vafre etnwjh lsok lekfIr ds iwoZ dh vof/k ls lacaf/kr gksrh gS] lsok lekfIr dh i'pkr~orhZ vofèk ls ugha & vafre ckj ÁkIr etnwjh dh ladYiuk iqu%LFkkiu ds i'pkr~ fiNyh etnwjh dh ladYiuk ds gh Áfrdwy ugha gksxh] vfirq og lafonk vf/kfu;e ds vè;k; 2 ds vuqlkj] fo'ks"kr% /kkjk 23 ds v/khu] yksd uhfr ds fl)kar ds Hkh Áfrdwy gksxhA ¼1986½ 3 ,l lh lh 156 rFkk ¼2020½ 6 ,l lh lh 438 vuqlfjrA ¼iSjk 6] 7] 9 ,oa 11½
¼2½ flfoy lsok & fiNyh etnwjh & fjV ;kfpdk esa] ;kph ml osru dk gdnkj ik;k x;k Fkk tks mls lsok lekfIr ds iwoZ ÁkIr gks jgh Fkh & vr% vafre ckj ¼lsok lekfIr ds Bhd iwoZ½ ÁkIr etnwjh ds vk/kkj ij laxf.kr 50 Áfr'kr fiNyh etnwjh lgh Árhr gksrh gS & rFkkfi] bl ÁØe ij ekeyk [kkfjt djuk U;k; dk migkl gksxk D;ksafd iqu%LFkkiu ds vkns'k ds vuqlj.k esa fiNyh etnwjh dh lax.kuk fujiokn :i ls ml etnwjh ij vk/kkfjr gksrh gS tks deZdkj dks ÁkIr gksrh ;fn lsok lekfIr dHkh gqbZ gh ugha gksrh & vr% fiNyh etnwjh dh lax.kk ml etnwjh ds vk/kkj ij dh tkuk gksrh gS tks lsok lekfIr ls iqu%LFkkiu rd] le;≤ ij etnwjh esa gqbZ leLr rn~uq:i o`f);ksa lfgr] deZdkj }kjk ÁkIr dh tkrhA ¼iSjk 5 ,oa 6½
¼3½ lafonk vf/kfu;e] 1872 & /kkjk 23 & fiNyh etnwjh & dHkh Hkh vafre ckj ÁkIr etnwjh dh ladYiuk ls lacaf/kr ugha gksrh & vafre etnwjh lsok lekfIr ds iwoZ dh vof/k ls lacaf/kr gksrh gS] lsok lekfIr dh i'pkr~orhZ vof/k ls ugha & vafre ckj ÁkIr etnwjh dh ladYiuk iqu%LFkkiu ds i'pkr~ fiNyh etnwjh dh ladYiuk ds gh Áfrdwy ugha gksxh] vfirq og vf/kfu;e ds v/;k; 2 ds vuqlkj] fo'ks"kr% /kkjk 23 ds v/khu] yksd uhfr ds fl)kar ds Hkh Áfrdwy gksxh
& Lokeh vkSj lsod vFkok fu;kstd & deZpkjh 23 ds v/khu] yksd uhfr ds fl)kar ds Hkh Áfrdwy gksxh & Lokeh vkSj lsod vFkok fu;kstd & deZpkjh ds fj'rs esa fu;kstd ^^lkSnk djus dh 'kfDr dh vlekurk** dk vkJ; ugha ys ldrk ^^lafonk dk yksdkRekfo#) fuca/ku** Áo`Ùk ugha fd;k tk ldrk & U;k;ky; lafonk ds ,sls yksdkRekfo#) fuca/ku dks lafonk ds 'ks"k Hkkx esa Áo`Ùk djus ls bUdkj Hkh dj ldrk gSA ¼1986½ 3 ,l lh lh 156 rFkk ¼2020½ 6 ,l lh lh 438 vuqlfjrA ¼iSjk 7] 9 ,oa 11½
¼4½ Hkkjr dk lafo/kku & vuqPNsn 215 rFkk 226 & U;k; djus dh 'kfDr & fjV ;kfpdk esa] ;kph ml osru dk gdnkj ik;k x;k Fkk tks mls lsok lekfIr ds iwoZ ÁkIr gks jgh Fkh & vafre etnwjh ds vk/kkj ij laxf.kr fiNyh etnwjh ij voeku ;kfpdk esa vk{ksi & U;k;ky; dks miyC/k ljy ekxZ mDr vkns'k ds 'kkfCnd vFkkZUo;u ds vuqlkj pyuk vkSj iqufoZyksdu ds ek/;e ls Li"Vhdj.k dh bZIlk ;kph ij NksM+us dk gksxk & rFkkfi] ;kph deZdkj vkSj de osru ikus okyk deZpkjh gS & yxHkx 21 o"kZ ls vius fof/klaxr vf/kdkj ds fy, la?k"kZjr & mDr vkns'k esa varfoZ"V funs'k esa tks folaxfr vuo/kkurk ds dkj.k vk xbZ FkhA vuqPNsn 226 ds v/khu varfuZfgr 'kfDr Á;qDr dj Li"V dh xbZ & ;g U;k; fgr esa gS fd eqdnesckth ds lkFk gh prqFkZ Js.kh deZpkjh dh O;Fkk dk var fd;k tk, & fuoZpu ds cgkus bUgsa fpjk;q ugha ckuk;k tk ldrkA 1993 lIyhŒ ¼4½ ,l lh lh 595] ¼1999½ 9 ,l lh lh 58 rFkk ¼2008½ 14 ,l lh lh 115 vuqlfjrA ¼iSjk 13] 14 ,oa 20½
¼5½ Hkkjr dk lafo/kku & vuqPNsn 215 rFkk 226 & voeku vf/kdkfjrk & ftl vkns'k dk vuuqikyu vfHkdfFkr gS] U;k;ky; mldh lhekvksa ds ijs ugha tk ldrk & ijarq fu.kZ;@vkns'k esa lqO;Dr ;k Li"Vr% Lo;afl) funs'kksa dk è;ku j[kk tkuk pkfg,A ¼2014½ 3 ,l lh lh 373 vuqlfjrA ¼iSjk 19½
ORDER
Nagu, J. -- 1. The instant contempt petition preferred u/Art. 215 of Constitution of India alleges non-compliance of the final order passed by co-ordinate bench of this Court in W.P.2222.2010 passed on 27.6.2011 (C/1) whereby this Court while allowing the petition of workman and setting aside the Award of the Labour Court directed for reinstatement with 50% back wages relevant paras of which are reproduced below for ready reference and convenience :-
“13. Looking to the aforesaid principle of law laid down by theHon'ble Supreme Court in our opinion, the petitioner is entitled 50% back wages.
14. Consequently, the petition filed by the petitioner is allowed with the following directions :--
i) The impugned award, Annexure-P/1 dated 23.9.2009, is hereby quashed.
ii) The reference is answered in favour of the petitioner by holding that the termination of services of the petitioner w.e.f. 1.3.99 is illegal and void ab initio.
iii) The petitioner is entitled for reinstatement and other service benefits.
iv) It is further held that the petitioner shall be entitled the salary as the salary he was getting before his termination of service including D.A.
v) It is further held that the petitioner shall be entitled 50% back wages. The order be complied with within a period of three months from the date of receipt of the copy of this order.
vi) No order as to costs.”
2. It is not disputed by learned counsel for rival parties that aforesaid decision dated 27.6.2011 was initially stayed by apex Court while entertaining SLP of the State but later the claim of State before apex Court was dismissed vide order dated 2.3.2020 in Civil Appeal 6302/12.
3. The case of workman/petitioner to file this contempt petition arose out of the fact that though workman was reinstated but 50% back wages have been worked out based on the last wages drawn by workman prior to his termination, i.e. prior to 1.3.1999 and not the actual wages payable for period between termination and reinstatement.
4. The stand of respondents, especially respondent No.1 Shri Ashwini Kumar Rai, Additional Chief Secretary to Govt of M.P. is that direction contained in the operative portion of the order dated 27.6.2011 was complied with in letter and spirit inasmuch as this Court had directed for payment of salary the workman was getting before his termination as contained in para 14(iv) of the order dated 27.6.2011. For ready reference and effective adjudication of the matter, the bone of contention i.e. para 14(iv) is reproduced below:-
14. Consequently, the petition filed by the petitioner is allowed with the following directions:-
(i) xxxx xxxx xxxx
(ii) xxxx xxxx xxxx
(iii) xxxx xxxx xxxx
(iv) It is further held that the petitioner shall be entitled the salary as the salary he was getting before his termination of service including D.A.
5. From bare perusal of direction contained in para 14(iv) of order dated 27.6.2011, it appears apparently that petitioner has been held to be entitled to salary as he was getting before his termination of service. Meaning thereby the salary/wages received by the workman immediately prior to termination of his service dated 1.3.1999 would be the deciding factor for working out 50% back wages. Thus, the contention of Shri Ashwini Kumar Rai/respondent No.1 is that 50% back wages had been worked out on the basis of last wages drawn (the wages received by the workman immediately prior to his termination), appears to be correct and no wilful disobedience appears on part of contemnors at this stage. Thus, this Court declines to draw contempt against respondent No.1-Ashwini Kumar Rai.
6. Dismissing this case at this stage would be travesty of justice since calculation of back wages pursuant to the order of reinstatement is invariably based on the wages which the workman would have drawn had the termination never taken place. Meaning thereby that the concept of award of back wages is based on the fundamental principle of compensa
SupremeToday
Workman - Order of Discharge or Dismissal - Section 11-A of the Act is reproduced as Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Cour....
In cases of wrongful termination, reinstatement with back wages is the normal rule unless the employer proves the employee was gainfully employed during the termination period.
Entitlement to back wages must be upheld when reinstatement is ordered, regardless of the employee's retirement status, due to failure of the employer to comply with court orders.
The issue of applicability of Government Resolution and other directions issued by the State Government to a minority institution cannot be the subject matter of a Contempt Petition.
The main legal point established in the judgment is the entitlement of an employee to claim wages for the period between dismissal and reinstatement, as per the provisions of the Industrial Disputes ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
